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Excerpted from: Natsu Taylor Saito, Alien and Non-alien Alike: Citizenship, “Foreignness,” and Racial Hierarchy in American Law, 76 Oregon Law Review 261 (Summer 1997) (428 Footnotes) (Full Document)

NatsuTaylorSaitoWhy is it that, even after living in the United States for four or five generations, Asian Americans are still identified as foreign? This Article examines the pervasive presumption of “foreignness” attaching to those of Asian descent in the United States, the legal and social influences of this presumption, and the functions it has served economically and in the preservation of racial and social hierarchy. My thesis is that the “racing” of Asian Americans as foreign reinforces the American racial hierarchy in two ways. First, it creates a buffer zone between those identified as “black” and “white.” Second, it constructs Asian Americans as instant outsiders, or “faux” citizens, against whom “real Americans” can unite in times of crisis.

Foreignness--used here to mean not only that which is not-American, but also that which is un-American considered in relation to the constructs of citizenship, race, and national origin. To understand what it means to be un-American, we must look at what is embedded in the concept “American,” and how that differs from U.S. citizenship. To know, or even reasonably debate, whether Asian Americans are playing the role of the racial middle, we need an understanding of racial stratification. This inquiry addresses how certain groups of people have come to be identified as black or white in America and why they are distinct from those identified as “yellow.” To analyze the functions served by the construct of foreignness, we must look at its history and identify its effects.

The history of Asian Americans and the law is becoming well documented, if not widely known. Discrimination and violence against Asian Americans is discussed in a growing body of Asian American legal scholarship as well as by civil rights and community organizations. Within this literature, the pervasive presumption of foreignness attaching to Asian Americans has been identified, and ties between nativism and racism have been noted. In a variety of specific contexts--such as accent discrimination, national origin protection under Title VII, and the debate surrounding California's Proposition 187 inadequacies of available legal remedies have been considered.

One area that has not yet been systematically addressed is how the categorization, or “racing” of Asian Americans as intrinsically foreign, relates to the structure and functioning of American racial and economic hierarchies. If one effect is to reinforce existing hierarchical relationships, then the negative impact of this presumption reaches all who are adversely affected by those hierarchies. This Article addresses this issue.

Part I of this Article looks at the emergence of the American nation-state, the creation of a national identity, and the linking of citizenship to race, both in our laws and in popular perceptions of what it means to be identified as American. Because foreignness often connotes disloyalty, Part I concludes with a brief look at ways in which citizenship, race, and national origin have been associated, historically and legally, with loyalty to the United States.

Many scholars agree that what we call “race” reflects socially constructed classifications rather than biological realities. Yet race is a construct that has powerfully shaped individual and group identities. It has also influenced the creation and maintenance of social and economic hierarchies which reflect not just differences, but relationships of domination and subordination. Part II considers how the racial identities of black and white evolved in American history and how diverse groups previously identified by nationality (as were Chinese, Japanese, and Koreans) became identified as Oriental or Asian, raced as “yellow,” and placed in a predominantly black-white bipolar social structure. Part III then looks at how foreignness came to be part of the racial identity of Asian Americans, focusing on the use of cheap, disposable Asian labor and the casting of Asians as the enemy in times of war or economic crisis. The impact of this presumption of foreignness on Asian Americans and on American society in a broader sense are also considered.

The legal system has been integrally involved in defining who is a citizen, in creating racial categories, and in regulating relationships between classes of people. How does it address foreignness? Part IV begins with an overview of avenues of legal redress for discrimination based on race, national origin, and alienage. It then examines the inadequacies of available remedies for race-based discrimination. The law currently requires proof of an intent to discriminate on the basis of race, yet it does not recognize the presumption of foreignness as part of the socially constructed racial identity of certain groups. Claims based on national origin are often counterproductive because they require a showing of foreignness. There are very few legal protections relating to alienage, and they do not address discrimination based on a presumption of foreignness. Thus, to develop effective legal remedies, we must begin with an explicit recognition of the problem of foreignness discrimination and with a willingness to apply strict judicial scrutiny to acts or omissions that are based on a presumption of foreignness.

While such legal remedies can alleviate some of the harm caused by discrimination rooted in a perception of foreignness, they do not, by themselves, address the more fundamental relationships between race, nationality, economic class, and social hierarchy. If Asian Americans have been raced as foreign because doing so provides economic benefits to some, because Asian Americans can be used as a buffer zone to absorb racial tension while preserving racial stratification, or because they are a convenient enemy when internal crises threaten the national fabric, then the elimination of problems associated with identifying Asian Americans as foreign will require systemic changes in our economic, racial, and social structures. Acceptance of an inclusive definition of who and what is American may be required for such changes. Part V makes five proposals for how our legal system could respond more effectively to discrimination based on a racially ascribed perception of foreignness. This Article concludes with some reflections on deconstructing foreignness and reconstructing our national, ethnic, or racial notions of identity.

. . .

I have sat at the back of the bus. . . . I know the hurt and humiliation that come with being mistreated. So, needless to say, there is no way on God's green earth that I could ever treat fellow human beings with such disrespect that I would ask them to prove to me their right to be in this corner of the world.

--An African American school principal speaking out against Proposition 187 in California.

Speaking about his experiences representing Haitian refugees who were interdicted at sea and held indefinitely in camps at the U.S. naval base at Guantanamo Bay, Cuba, Harold Koh said:

I learned something about how history repeats itself. . . . I heard our government assert claims of national security and national emergency in support of its demand for presidential power: the Korematsu argument being made against the Haitians. I heard the Chinese Exclusion argument about sovereignty and inherent power to protect our borders invoked against the Haitians. The Government cited U.S. ex rel. Knauff v. Shaughnessy, an egregious case that had declared that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”

. . . .

As I prepared for the oral argument before the [Supreme] Court, it finally dawned on me that the Haitian saga is not someone else's saga. It is my story.

. . . .

I realized that the Haitian story reduces to a story about “we” and “they.” Our government was able to depersonalize the Haitians because Americans wanted to believe that the Haitians are not us.

This Article begins to trace and unravel some of the threads that give the fabric of this society its basic patterns and texture: citizenship, race, and foreignness. In examining Asian American experiences with U.S. law, I have come to believe that the classification of those of Chinese, Japanese, Korean, Filipino, Indian, and Pacific-Island descent into an Asian or “yellow” race, and the subsequent identification of those of that race as foreign must be understood as part of the larger process of maintaining our particular social, racial, and economic hierarchies.

Matters of citizenship and foreignness--who is a member of this polity, who should be allowed to live here, who should pay which social costs, and who should receive which benefits--are at the forefront of modern social consciousness, political rhetoric, legal theory, and judicial decision-making. These matters are closely tied to deeply held beliefs about what it is to be an American and what America should be. At the same time, this country continues to be racially divided, the disparities continue to grow, and what appeared to be solutions a generation ago have failed. The gulf between the rich and the poor is growing and the poor are increasingly worse off.

There are those who see these as unrelated phenomena. Some argue that racism is a matter of individual consciousness, best countered by color blindness. Some assert that we have no social obligations to those who are not citizens, for they can always “go back home.” Others claim that those who are at the bottom of the socioeconomic ladder can work their way up by individual effort. From these perspectives, the history presented in this Article is simply history; interesting, perhaps, but irrelevant to contemporary legal or social concerns. From such perspectives, if Asian Americans face continued discrimination, it should be countered by them individually, using available legal remedies. However, if the analysis presented in this Article is correct, these questions of race, nationality, and what it is to be American cannot be separated. If division into polarized “races” is a cornerstone of this society, we cannot truly bring those of Asian descent into American society without paying attention to how Asian Americans are racialized. If part of the racial identification of Asians is as intrinsically foreign, it will be fruitless to advocate or strive for assimilation without a concomitant deconstruction of that racialized identity. If that racialized identity is playing an important part in preserving a larger hierarchy of racial domination and subordination, a hierarchy that is closely tied to economic stratification, we will not be able to unravel it without deconstructing these broader social, racial, and economic structures.

Associate Professor, Georgia State University College of Law. B.A. 1977, Swarthmore college; M.Ed. 1982, Georgia State University; J.D. 1987, Yale Law School.